SR-011309-7B~~
~;~Ya, City Council- Report
Santa Monica"
City Council Meeting: January 13, 2009
Agenda Item: ~-'~g
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Introduction and First Reading of an Ordinance Amending the Anti-
. Smoking Law To Regulate Smoking in Multi-Unit Residential Common
Areas; and Recommendation for Related Public Education and Outreach
Recommended Action
Staff recommehds that City Council introduce for first reading the attached proposed
ordinance. Staff also seeks Council direction for possible areas of public education and
outreach regarding multi-unit residential smoking as described below.
Executive Summary
The proposed ordinance would provide a new civil remedy to address smoking in multi-
unit residential common areas in rental properties and condominiums, while not creating
a ground for terminating the tenancies of persons who smoke there. The ordinance also
would allow landlords and homeowners' associations to create designated smoking
areas in some situations; and it would require landlords to provide signage and notice of
the law. Staff also recommends that Council approve a strong education and outreach
program to advise landlords and tenants of their various rights and responsibilities
under the law, and to encourage and facilitate cessation of smoking ih various ways.
There is no significant cost to the City associated. with the proposed ordinance. The
proposed education and outreach could entail various modest costs to the City. The
report also includes a briefing on the Calabasas residential smoking ordinance.
Background
Following public discussion at its meeting of October 28, 2008, Council directed staff to
prepare an ordinance amending the City's anti-smoking ordinance to prohibit smoking in
outdoor common areas of multi-unit residential properties, while at the same time not
creating a new ground. for terminating residential tenancies or for harassment of
tenants. Council also requested that the ordinance be supplemented with various
education and resources including encouraging the resolution of disputes.. Finally,
Council asked for a briefing on the Calabasas residential smoking ordinance.
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Discussion
A. Proposed Ordinance
Pursuant to Council's direction, the attached proposed ordinance would provide a civil
remedy to prohibit smoking in common areas of multi-unit residential properties. Staff
considered two feasible remedies to address Council's intention to address common
area smoking while not creating any new ground to evict or harass a tenant who
smokes in a common area. The remedy proposed is damages of at least $100, which
could be recovered in Small- Claims Court by any person. In extreme or chronic cases,
where private enforcement proves ineffective, the City could bring an action.
There are two ways in which the proposed ordinance explicitly protects tenants from
evictions: (1) the ordinance may not be used as grounds to terminate a tenancy; and (2)
smoking. in common areas shall not be considered a "violation of law" under a lease.
The ordinance also excludes the criminal infraction remedy used in the City's other rion-
smoking regulations. Staff believes that these safeguards are sufficient to prevent the
ordinance from providing grounds to evict a smoking tenant. If the savings provisions
somehow prove ineffective or invalid, Council could revisit the ordinance consistent with
its goal to protect existing tenancies.
Staff notes that under existing law, both landlords and non-smoking tenants already
have legal bases to challenge tenant smoking in court, for example under a nuisance
theory in certain factual circumstances. The proposed ordinance would not affect any
other existing remedies.
Another remedy option staff considered was injunctive relief, under which a person
could get a court order to stop another from smoking in a .common area. However, that
remedy would not allow aggrieved tenants to bring cases to Small Claims Court (which
only handles monetary claims, not injunctions), and thus they would need to hire an
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attorney. The cost of hiring a private attorney for an injunction may often exceed
tenants' resources especially given the lack of any contingency or fee recovery
provision. Although it is not recommended, the injunction remedy combined with notice
of the law could provide some measure of deterrent to common area smoking.
These .appear to be the only two remedy options that would avoid providing additional
grounds for evicting tenants. Other possible remedies run the risk of triggering the
"violation of law" clause found in most leases. For example, making smoking in common
areas a criminal infraction or adopting a more generic legal prohibition with civil
remedies would likely trigger such clauses.
The proposed ordinance also allows, but does not require, property owners to designate
a smoking location in common areas (with certain requirements). The ordinance adopts
the same standard for designated areas used by the City of Oakland, which is the only
other city with rent control to regulate smoking in outdoor common areas. Oakland's
ordinance and the proposed ordinance both establish distance requirements that, in
effect, create buffer zones.
The ordinance requires that any person who sues to enforce it must first make a good
faith attempt to resolve the situation informally, including written notice of the law and a
written request to stop smoking in the property's common areas.
The ordinance also requires property owners to post signs and provide notice of the law
to all affected tenants.
Calabasas Ordinance
At Council's request, the following are the key components of Calabasas's residential
.smoking ordinance which began in February 2008:
• Smoking is prohibited in all multi-unit residential common areas (owners shall
designate smoking areas, with certain requirements);
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• By 2012, 80 percent of all units in multi-unit buildings must be non-smoking;
• Landlords must give a no-smoking notice to all tenants in non-smoking units;
• If a building has some smoking units, all .non-smoking units must be grouped
together;
• Existing tenants may designate their units as smoking units;
• Landlords must report all non-smoking .units to the City Manager;
• All new leases must prohibit smoking if the unit is anon-smoking unit;
• Landlords must disclose the location of all. smoking and non-smoking units to
new tenants
• The same remedies exist as under the general Calabasas smoking ordinance
adopted in 2006:
1) Violations are either misdemeanors or infractioris;
2) Private persons or the City can bring a civil court action for damages
(of at least $250), an injunction, and attorneys' fees;
3) Smoking is declared a public nuisance.
B. Educational Outreach Campaign For Residential Smoking
Staff recommends an outreach campaign in conjunction with the proposed ordinance to
educate tenants, landlords, and the public about:
1) the interpretation and enforcement of the new ordinance;
2) the rights and responsibilities of landlords and tenants under already existing
law, including:
• the right of landlords to convert any new tenancies to'non-smoking, or
to make entire properties smoke-free while grandfathering existing
smoking tenants;
• the right of disabled tenants suffering from second-hand smoke to
request reasonable accommodations or modifications of their tenancies
(such as changing units); and the legal requirement that landlords. comply
with such requests to the extent reasonable;
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• other legal .remedies available to tenants suffering from second-hand
smoke; and
• mediation resources available to tenants and landlords.
3) the availability of excellent existing resources to assist smokers who wish to
quit smoking.
Staff notes .that this outreach campaign could be combined with or related to the
pending campaign by Southard Communications which currently covers the existing,
non-residential components of the City's non-smoking law. However, staff recommends
conducting the residential program separately since the residential arena raises unique
enforcement and policy issues.
Alternatives
As to the proposed residential common area smoking ordinance, Council could consider
alternatives to the proposed approach including different remedies, as described above.
Financial Impacts & Budget Actions
Adoption of the proposed ordinance would have minor financial impact. The prohibition
of smoking iri outdoor residential common areas would be enforced primarily by private
persons and would not involve City staff time for enforcement. The public education
program could have moderate associated cost depending on the direction by Council. It
could also result in additional costs to the extent the City's public relations contractor
Southard Communications is utilized.
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Prepared by: Adam Radinsky, Head, Consumer Protection Unite
Attachments: A: Proposed Ordinance
roved: Forwarded to Council:
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City Council Meeting: January 13, 2009 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING CHAPTER 4.44 OF THE SANTA MONICA MUNICIPAL
CODE ON SMOKING TO REGULATE SMOKING IN COMMON AREAS OF MULTI-
UNIT RESIDENTIAL PROPERTIES
WHEREAS, more than 440,000 people die in the United States from tobacco-
related diseases every year, making it the nation's leading cause of preventable illness;
and
WHEREAS, the United States Surgeon General recently issued a landmark
report describing "massive and conclusive scientific evidence" that ETS causes
premature death and disease in adults and children, including cancer, cardiovascular
disease, and asthma; and
WHEREAS, the Surgeon General's Report concluded that "there is no risk-free
level of exposure to secondhand smoke" and that exposure to ETS has "immediate
adverse effects" on the cardiovascular system;
WHEREAS, the Surgeon General's Report concluded that public smoking Taws
are having the effect of improving public health and also reducing the incidence of
smoking generally; and
WHEREAS, the Centers for Disease Control estimates that secondhand smoke
exposure causes as many as 300,000 children in the United States to suffer from lower
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respiratory tract infections such as pneumonia and bronchitis, exacerbates childhood
asthma, and increases the risk of acute, chronic middle ear infection in children; and
WHEREAS, the United States Environmental Protection Agency (EPA) has
classified second-hand smoke as a Group A carcinogen, the most dangerous class of
carcinogens; and
WHEREAS, the EPA has concluded that second-hand. smoke causes coronary
heart disease in non-smokers; and
WHEREAS, exposure to ETS is the third leading cause of preventable death in
this country, killing over 52,000 non-smokers each year, including 3,000 deaths from
lung cancer; and
WHEREAS, second-hand smoke is especially hazardous to particular groups,
including those with chronic health problems, the elderly, and children; and
WHEREAS,-the California Air Resources Board ("GARB") has officially identified
second-hand smoke, or ETS, as a "toxic air contaminant" pursuant to Health and Safety
Code Section 39660,. providing the most authoritative finding. to date of the health
dangers of ETS in California; and
WHEREAS, the CARB's Scientific Review Panel found that ETS concentrations
in some outdoor locations was comparable to those found inside smokers' homes; and
WHEREAS, the GARB report noted the following health statistics resulting from
second-hand smoke. exposure each year in the. state of California:
• Over 400 additional lung cancer deaths
• Over 3,600 cardiac deaths
• About 31,000 episodes of children's asthma
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• About 21 cases of SIDS
• About 1,600 cases of low birth weight in newborns
• Over 4,700 cases of pre-term delivery; and
WHEREAS, what the scientific research has confirmed is reflected in the large
and growing number of local, state, and national governments that have prohibited
smoking in many different outdoor locations ih recent years;
WHEREAS, children and. youth who observe smoking in public places may
model the behavior; and
WHEREAS, City staff and other agencies have received complaints from
residents of second-hand smoke exposure originating in the common areas of multi-unit
residential properties ;and
smoking at all outdoor common areas of multi-unit
WHEREAS, ~r1~~~
residential areas is necessary to protect the public health, safety and welfare of Santa
Monica residents; and
WHEREAS,. most Californians do not smoke and a majority favor limitations on
smoking in multi-unit residences, as evidenced by the following:
• 86% of Californians are non-smokers; and
• 70% of Californians surveyed approve of apartment complexes
requiring of least half of rental units be non-smoking, and
• 67% of Californians surveyed favor limiting smoking in .outdoor
common areas of apartment buildings; and
WHEREAS, research demonstrates that local tobacco retail ordinances
dramatically reduce youth access to cigarettes; and
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Chapter 4.44 of the Santa Monica Municipal Code is hereby
amended to read as follows:
CHAPTER 4.44
REGULATION OF SMOKING
Section 4.44.010 Definitions.
The following words and phrases, as used in this Chapter or in ahy
other applicable law regulating smoking, shall have the following
meanings:
(a) Dining area. Anon-residential location where food or beverages
are served by a business or routinely consumed by customers. This
includes but is not limited to restaurant or bar seating areas and patios.
(b) Multi-Unit Common Area. Any indoor or outdoor area at a
multi-unit residential property (including rental properties and
condominiums) that is accessible to and usable by the occupant of more
than_one unit, including but not limited to halls, walkways, lobbies, laundry
rooms, common cooking areas, outdoor dining areas, patios play areas,
svvimming pools, .gardens, and parking lots.
-(~}~ Service. area. A place where people use or wait for services
provided. by a private or government entity. This includes but is not limited
to bus stops, ATM lines, information kiosks and theater lines.
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~~ Smoke or smoking. The carrying or holding of a lighted pipe,
cigar, cigarette, or any other lighted smoking product or equipment used to
burn any tobacco products, weed, plant, or any other combustible
substance. Smoking includes emitting or exhaling the fumes of any pipe,
cigar, cigarette, or any other lighted smoking equipment used for burning
any tobacco product, weed, plant, or any other combustible substance.
Section 4.44.020 Prohibitions.
(a) Smoking in Specific Locations.
It shall be unlawful to smoke in the following places:
(1) Any elevator;
(2) Any public park;
(3) Any public beach;
(4) Anywhere on the Santa Monica Pier, except in designated
areas;
(5) Any outdoor service area;
(6) Inside any public building (as that term is defined in
Government Code Section 7596);
(7) Any outdoor dining area;
(8) Within twenty feet of the entrance, exit or open window of
any building open to the public;
(9) The Third Street Promenade;
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(10) Any Farmers Market;
(11) The property of any public library.-~
(b) Disposal of Smoking Waste.
No person shall dispose of any cigarette, cigar or tobacco, or any
part of a cigarette or cigar, in any place where smoking is prohibited under
this Chapter, except in a designated waste disposal container.
(c) Liability of Businesses.
No business owner, operator or manager shall knowingly or
intentionally allow smoking in an outdoor dining area that is under his, her
or its control. This law does not require the physical ejection of any person
from the business or the taking of steps to prevent smoking under
circumstances that would involve a significant risk of physical harm.
(d) Posting of Signs.
Every business that owns or controls an outdoor dining area
covered under subsection (a)(7) shall post one or more prominent signs in
conspicuous locations to apprise users of the prohibition of smoking in that.
outdoor dining area. Multiple signs must be provided as needed for larger
areas to ensure that signs are readily visible to all users of the area.
(e) Enforcement and Penalties.
(1) Infraction. A violation of this Section is an infraction. and shall
be punished by a fine of one hundred dollars for the first violation; two
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hundred dollars for a second violation within one year; and five hundred
dollars for a third and subsequent violations within one year.
(2) Nonexclusive Remedies and Penalties. Punishment under this
Section shall not preclude punishment pursuant to Health and Safety
Code Section 13002, Penal Code Section 374.4, or any other law
proscribing the act of littering. Nothing in this Section shall preclude any
person from seeking any other remedies, penalties or procedures
provided by law.
Section 4.44.030 Sale of tobacco by vending machine or other
mechanical device or out of package.
(a) Purpose. The City Council finds cigarette smoking and other
tobacco use by minors to be a continuing problem with grave public health
consequences. Studies show that the vast majority of adult smokers
began as teenagers, and that teenagers who begin using tobacco before
the age of fifteen eventually have much higher cancer rates than non-
tobacco using teenagers. In recognition of the Surgeon General's
conclusion that Nicotine is as addictive as cocaine or heroin, action is
needed to curtail the easy access of minors to cigarettes and other
tobacco. products. The purpose of this Chapter is to implement a strict and
enforceable system to prevent the illegal sale of cigarettes and other
tobacco products to minors.
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(bp Vending Machines. On or after May 1, 1991, no person shall
sell or dispense cigarettes or other tobacco products by vending machine
or any other device that automatically sells or dispenses tobacco products.
(c) Out of Package Sales Prohibited. It is unlawful to sell
cigarettes out of the manufacturer's package or without required health
warnings.
Section 4.44.040 Smoking In Multi-Unit Common Areas.
(a) Remedy. Any person who smokes in a Multi-Unit Common
Area is subject to an award of damages of not less than $100 which may
be collected by any person in a civil action, including an action in Small
Claims Court. The minimum damages amount shall increase to $200 for
the second violation within one vear; and to $500 for the third and
subsequent violations within one. vear.
(b) Notice Required. The landlord or homeowners' association
of every property that includes aMulti-Unit Common Area shall provide
notice of the. remedy in sub-section (a) to all affected occupants by:
(1) posting one or more prominent signs in conspicuous
locations in each Multi-Unit Common Area to ensure that the signs
are readily visible to all users of the. area; and
(2) serving written notice on each unit.
(~c Limitations and Exceptions.
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(1) Nothing in this section may be used as grounds to terminate
a tenancy. Nothing in this section shall render smoking in Multi-Unit
Common Areas a violation of law pursuant to any rental housing
agreement.
(2) No action may be brought pursuant to this section unless the
complaining party has first made a good faith attempt to resolve the
situation informally, including written notice of this section and a written
request to cease smoking in the Multi-Unit Common Area at least 30 dam
before filing suit.
(3) The property. owner, manager, or homeowners' association
may designate a portion of a Multi-Unit Common Area where smoking is
allowed. Any such designated area:
(A) must be located at least 20 feet from anv indoor area;
(B) must not include and must be at least 20 feet from play
or recreation areas including but not limited to areas improved or
designated for swimming or other sports;
(C) must be no more than 25 percent of the total outdoor
area of the premises of the property:
(D) must have a clearly marked perimeter
(E) must be identified by conspicuous signs; and
(F) must not overlap with anv area in which smoking is
otherwise prohibited by this chapter or other law.
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(d) Nonexclusive Remedies and Penalties. Nothina in this Section
shall preclude anv person from pursuing anv other remedies, penalties or
procedures provided by law.
SECTION 2: Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 3. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the. validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have. passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within 15 days after its adoption. This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
MARSHA JONES MOUTRIE
City Attorney
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